{"id":56671,"date":"2008-10-23T00:00:00","date_gmt":"2008-10-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajan-panathara-vs-the-managing-director-on-23-october-2008"},"modified":"2017-10-17T17:47:58","modified_gmt":"2017-10-17T12:17:58","slug":"rajan-panathara-vs-the-managing-director-on-23-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajan-panathara-vs-the-managing-director-on-23-october-2008","title":{"rendered":"Rajan Panathara vs The Managing Director on 23 October, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Rajan Panathara vs The Managing Director on 23 October, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 29744 of 2008(N)\n\n\n1. RAJAN PANATHARA ,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE MANAGING DIRECTOR\n                       ...       Respondent\n\n                For Petitioner  :SRI.SURESH KUMAR KODOTH\n\n                For Respondent  :SRI.MAJNU KOMATH, SC, K.S.W.C.\n\nThe Hon'ble MR. Justice P.N.RAVINDRAN\n\n Dated :23\/10\/2008\n\n O R D E R\n                       P.N.RAVINDRAN, J.\n        ======================================\n                    W.P.(C)No.29744 of 2008\n        ======================================\n             Dated this the 23rd day of October 2008\n\n                          JUDGMENT\n<\/pre>\n
      The petitioner, who is presently working as Senior<\/p>\n
Assistant Manager in the Kerala State Warehousing Corporation<\/p>\n
(hereinafter referred to as `Corporation’ for short), challenges<\/p>\n
Ext.P1 order transferring him from Thaliparamba to North<\/p>\n
Paravur.\n<\/p>\n
      2. The petitioner entered service in the Corporation in the<\/p>\n
year 1976. He was promoted as Assistant Manager with effect<\/p>\n
from 1.6.2001 and as Senior Assistant Manager with effect<\/p>\n
from 19.6.2006. The petitioner is a resident of Neeleshwar in<\/p>\n
Kasargod District. On promotion as Senior Assistant Manager,<\/p>\n
he was posted at Irritty in Kannur District. Thereafter he was<\/p>\n
transferred to State Warehouse, Payyannur by order dated<\/p>\n
5.3.2007 and he joined duty at Payyannur on 7.4.2007. The<\/p>\n
State Warehouse at Payyannur is about 30 kms. away from<\/p>\n
Neeleshwar where the petitioner resides.\n<\/p>\n
      3. While matters stood thus, by Ext.P2 order dated<\/p>\n
18.1.2008, the respondent transferred the petitioner from<\/p>\n
W.P.(C)No.29744\/2008           2<\/span><\/p>\n
     Payyannur and posted him as Senior Assistant Manager in the<\/p>\n
     State Ware House at Nattika in the vacancy that arose on the<\/p>\n
     transfer of the incumbent at Nattika to Kasargod. Smt.M.P.<\/p>\n
     Ganga, Senior Assistant Manager, Thaliparamba was directed<\/p>\n
     to hold additional charge of the State Warehouse, Payyannur<\/p>\n
     until further orders.\n<\/p>\n
            4. The petitioner challenged Ext.P2 order in W.P.(C)<\/p>\n
     No.3240 of 2008 essentially on three grounds. The first ground<\/p>\n
     urged was that as he has to look after his aged mother who is<\/p>\n
     more than 90 years old and he himself is suffering from Thyroid<\/p>\n
     disease the transfer from Payyannur will cause serious hardship<\/p>\n
     to him. It was also contended that the order of transfer has<\/p>\n
     been passed in connection with a disciplinary enquiry against<\/p>\n
     him. Yet another contention raised was that as he is due to<\/p>\n
     retire from service on 31.7.2008 on attaining the age of 55<\/p>\n
     years, there is no reason to transfer him out of Payyannur. The<\/p>\n
     respondent resisted the writ petition setting out the reasons<\/p>\n
     which necessitated the petitioner’s transfer from Payyannur.<\/p>\n
     Accepting the contentions raised by the respondent and<\/p>\n
     repelling the challenge to Ext.P2, this Court disposed of the<\/p>\n
     said writ petition with the following observations:<\/p>\n
               i)    If the   age    of  retirement  of  the<\/p>\n
W.P.(C)No.29744\/2008           3<\/span><\/p>\n
             employees of the Corporation is enhanced
\n             beyond the age of 55 or the petitioner
\n             continues     in  service   beyond    31.7.2008,
\n             Corporation would be entitled to enforce
\n             Ext.P1.    Of   course,   it is   open    to  the
\n             Corporation in such circumstances, to post
\n             the petitioner in a place other than Nattika
\n             also. Such decision should be taken on fair
\n             and reasonable grounds.\n<\/p>\n
              ii)    Corporation may consider a place of
\n              posting to the petitioner nearer to his place
\n              of residence in Neeleswaram in Kasargode
\n              District. This is only in the light of the stand
\n              taken by the petitioner, i.e. he is required to
\n              look after his aged mother and also that he
\n              himself    is  a   chronic   Thyroid    patient.\n<\/p>\n
              Corporation may take a decision in this
\n              regard within a period of two weeks from
\n              today and thereupon, it will be open to the
\n              Corporation to transfer the petitioner outside
\n              Payyannur.\n<\/p>\n
              iii)   Till the Corporation takes such a
\n              decision, he shall be permitted to continue
\n              there and thereafter, his posting will be
\n              subject to the decision to be taken by the
\n              Corporation.”\n<\/p>\n<\/p>\n
        5. A reading of the operative portion of Ext.P3 judgment<\/p>\n
  indicates that this Court did not interfere with the petitioner’s<\/p>\n
  transfer from Payyannur to Nattika ordered as per Ext.P2. When the<\/p>\n
  earlier writ petition was heard, it was brought to the notice of this<\/p>\n
  Court that the issue regarding the age of retirement of the<\/p>\n
  employees of the Corporation is pending consideration by a Full<\/p>\n
W.P.(C)No.29744\/2008          4<\/span><\/p>\n
  Bench of this Court and as the decision of the learned Single Judge<\/p>\n
  directing the Corporation to raise the age of retirement to 58 years<\/p>\n
  was under challenge in appeal, it was doubtful whether the<\/p>\n
  petitioner can continue in service beyond 55 years. Therefore in<\/p>\n
  Ext.P3 judgment, this Court directed that if the petitioner remains<\/p>\n
  in service beyond 31.7.2008 when he attains the age of 55 years,<\/p>\n
  the Corporation will be entitled to enforce Ext.P2 [Ext.P1 in W.P.(C)<\/p>\n
  3240 of 2008]. This Court further directed that till 31.7.2008, the<\/p>\n
  Corporation will retain him at a station near to his residence at<\/p>\n
  Neeleshwar and consider his request for cancellation of the<\/p>\n
  transfer. It was also directed that till revised orders are passed, the<\/p>\n
  petitioner shall be permitted to continue at a place near to his<\/p>\n
  residence at Neeleshwar where he will be posted. Pursuant to the<\/p>\n
  directions issued by this Court in Ext.P3 judgment, the respondent<\/p>\n
  issued Ext.P4 order dated 27.3.2008, keeping in abeyance Ext.P2<\/p>\n
  order of transfer till 31.7.2008 and posting the petitioner as Senior<\/p>\n
  Assistant Manager in the State Ware House at Taliparamba. The<\/p>\n
  incumbent at Taliparamba was transferred and posted to the State<\/p>\n
  Ware House at Payyannur. By Ext.P4, it was also directed that the<\/p>\n
  transfer to State Ware House, Nattika         will be kept pending till<\/p>\n
  31.7.2008 and will be reviewed if the petitioner continues in<\/p>\n
  service beyond the age of 55 years. Thereafter, when the petitioner<\/p>\n
W.P.(C)No.29744\/2008           5<\/span><\/p>\n
  chose to continue in service, Ext.P1 order of transfer was passed<\/p>\n
  transferring him to State Ware House, North Parur. Ext.P1 is under<\/p>\n
  challenge in this writ petition.\n<\/p>\n
         6. I have heard Sri.Suresh Kumar Kodoth, the learned counsel<\/p>\n
  appearing for the petitioner and Sri.Majnu Komath, the learned<\/p>\n
  standing counsel appearing for the respondent. The petitioner<\/p>\n
  challenges Ext.P1 order of transfer essentially on three grounds.<\/p>\n
  His contentions are that he has to look after his aged mother who<\/p>\n
  is more than 90 years old, that he himself is suffering from Thyroid<\/p>\n
  disease and that no administrative reason exists warranting his<\/p>\n
  transfer to North Parur. The learned standing counsel appearing<\/p>\n
  for the respondent has filed a statement dated 14.10.2008<\/p>\n
  resisting the writ petition. The respondent has stated that till his<\/p>\n
  transfer to Nattika ordered as per Ext.P2, the petitioner had served<\/p>\n
  only in Kannur District except for a short spell of 4 months at<\/p>\n
  Kunnamkulam in Thrissur District and 8 months at Kalpetta in<\/p>\n
  Wayanad District. It is evident from Ext.R1(a) produced along with<\/p>\n
  the statement filed by the respondents that from the date of his<\/p>\n
  entry in service, the petitioner has served only in Kannur District,<\/p>\n
  except for 4 months at Kunnamkulam in Thrissur District and 8<\/p>\n
  months at Kalpetta in Wayanad District. The respondent has also<\/p>\n
  stated that the petitioner’s mother is residing with his younger<\/p>\n
W.P.(C)No.29744\/2008        6<\/span><\/p>\n
  brother Sri.Shanmughan, who is residing close to the petitioner’s<\/p>\n
  house and that the petitioner’s married sister is also residing close<\/p>\n
  to the petitioner’s house along with her family members. The<\/p>\n
  respondent has further stated that the petitioner is residing with<\/p>\n
  his wife and two children and that it is his brother who is looking<\/p>\n
  after his aged mother. As regards his ill health, the respondent<\/p>\n
  states that from January to August 2008, the petitioner had availed<\/p>\n
  only 4 day’s leave on account of his illness and that it would show<\/p>\n
  that the ailment put forward by him is only a ruse to stall his<\/p>\n
  transfer to another station.      As regards the administrative<\/p>\n
  necessity, the respondent states that due to the volume of<\/p>\n
  business, a new Warehouse building is being constructed at North<\/p>\n
  Parur and therefore it was decided that the services of a senior<\/p>\n
  and experienced hand should be made available at North Parur<\/p>\n
  having regard to the volume of business transacted in that<\/p>\n
  Warehouse. The respondent also states that an enquiry is being<\/p>\n
  conducted against the petitioner, in respect of the matter referred<\/p>\n
  to in Ext.P9 show cause notice and that the petitioner was found to<\/p>\n
  be negligent in the discharge of his duties at Payyannur. In short,<\/p>\n
  the respondent contends that the transfer of the petitioner was<\/p>\n
  made     in  exigencies  of  service    and   not   on   extraneous<\/p>\n
  considerations and that it was necessary to shift him from<\/p>\n
W.P.(C)No.29744\/2008          7<\/span><\/p>\n
  Payyannur.\n<\/p>\n
        7. I have considered the submissions made at the Bar by the<\/p>\n
  learned counsel appearing on either side. It is evident from the<\/p>\n
  pleadings that the petitioner has not served in any district other<\/p>\n
  than Kannur district except for a short spell of 4 months in<\/p>\n
  Kunnamkulam in Thrissur District and 7 months at Kalpetta in<\/p>\n
  Wayanad District. The pleadings also disclose that the petitioner<\/p>\n
  was all along being given convenient postings near his place of<\/p>\n
  residence. The respondent states that the petitioner is not sick as<\/p>\n
  stated and that during the period of 8 months from January to<\/p>\n
  August 2008, he had availed only four day’s leave on medical<\/p>\n
  grounds. The respondent also states that the petitioner’s mother is<\/p>\n
  residing with his brother. The petitioner has not filed a reply<\/p>\n
  affidavit disputing these averments in the statement filed by the<\/p>\n
  respondent. Therefore two of the grounds put forward by the<\/p>\n
  petitioner to challenge Ext.P2 order of transfer, are not tenable.<\/p>\n
  The only other ground raised by the petitioner is that the transfer<\/p>\n
  is not in the exigencies of service.\n<\/p>\n
        8. The Apex Court has in State of U.P. v. Gobardhan Lal<\/a><\/p>\n
  (2004 (11) SCC 402) held that an order of transfer can be<\/p>\n
  interfered with only if it is shown to be one issued by an<\/p>\n
  incompetent authority or is one made in violation of a statutory<\/p>\n
W.P.(C)No.29744\/2008         8<\/span><\/p>\n
  rule or is proved to be one vitiated by malafides. In the instant case<\/p>\n
  the petitioner has no case that the order of transfer is vitiated on<\/p>\n
  any of the three grounds. The Apex Court has in State of U.P. v<\/p>\n
  Gobardhan Lal (supra) held that this Court cannot act as an<\/p>\n
  appellate authority over the orders of transfer issued by the<\/p>\n
  competent authority, assess the niceties of the administrative<\/p>\n
  needs and the requirements of the situation and substitute its<\/p>\n
  decision to that of the competent authorities. In the instant case,<\/p>\n
  the respondent has stated that in relation to the conduct of the<\/p>\n
  petitioner while he was the Senior Assistant Manager at Payyannur,<\/p>\n
  disciplinary proceedings are in contemplation and that it was one<\/p>\n
  of the reasons which necessitated his transfer from Payyannur. It<\/p>\n
  iss also stated that the services of the petitioner are required at<\/p>\n
  North Parur, where a new and additional Ware House building is<\/p>\n
  being put up, having regard to the volume of business transacted<\/p>\n
  in that Warehouse. This Court has in Ext.P3 judgment held that the<\/p>\n
  reasons put forward by the Corporation to transfer the petitioner<\/p>\n
  from Payyannur, cannot be said to be illegal or arbitrary and that<\/p>\n
  the order of transfer does not merit interference. All that this<\/p>\n
  Court in Ext.P3 judgment had directed was that till 31.7.2008, the<\/p>\n
  petitioner may be given a suitable posting near his place of<\/p>\n
  residence and that thereafter if the petitioner continues in service,<\/p>\n
W.P.(C)No.29744\/2008         9<\/span><\/p>\n
  it will be open to the Corporation to revive his transfer to Nattika<\/p>\n
  or to give him a suitable posting else where. In other words, the<\/p>\n
  right of the Corporation to transfer the petitioner to a place of its<\/p>\n
  choice, was not fettered, when this Court delivered Ext.P3<\/p>\n
  judgment.\n<\/p>\n
         For the reasons stated above, I hold that there is no merit in<\/p>\n
  the challenge to Ext.P1. This writ petition fails and is accordingly<\/p>\n
  dismissed.\n<\/p>\n<\/p>\n
                                   P.N.RAVINDRAN, JUDGE<\/p>\n
  css\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Rajan Panathara vs The Managing Director on 23 October, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 29744 of 2008(N) 1. RAJAN PANATHARA , … Petitioner Vs 1. THE MANAGING DIRECTOR … Respondent For Petitioner :SRI.SURESH KUMAR KODOTH For Respondent :SRI.MAJNU KOMATH, SC, K.S.W.C. The Hon’ble MR. Justice P.N.RAVINDRAN Dated […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-56671","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nRajan Panathara vs The Managing Director on 23 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rajan-panathara-vs-the-managing-director-on-23-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajan Panathara vs The Managing Director on 23 October, 2008 - 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